Madras High Court
K.S. Nallasamy Gounder vs Pavayee Ammal (Died) on 5 February, 2021
S.A..No.1142 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.02.2021
CORAM
THE HONOURABLE MR. JUSTICE T. RAVINDRAN
S.A.No. 1142 of 2008
K.S. Nallasamy Gounder
S/o. Chellappa Gounder ... Appellant
Vs.
1. Pavayee Ammal (died)
W/o. Nachimuthu Gounder
2. K.N. Palanisamy
S/o. Nachimuthu Gounder
3. Dhanapakkiam
W/o. Dhanapalan
4. K.N. Eswaramoorthy
S/o. Nachimuthu Gounder ... Respondents
R2 to R4 are recorded as LRs of the deceased R1
vide order of court dated 29.11.2019 made in S.A.
1142/08 as per memo dated 12.11.2019 in USR
No.34111/19 are recorded.
Prayer: Second Appeal filed under Section 100 of the Civil Procedure
Code against the decree and judgment dated 20.12.2007 passed in A.S.
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S.A..No.1142 of 2008
No.59/07 on the file of the Principal District Court, Erode, reversing the
decree and judgment dated 18.09.2006 passed in O.S.No.180/05 by the
Second Additional Sub Judge Court, Erode.
1. For Appellant : Mr. I.C. Vasudevan
For Respondents : Mr. C. Prakasam
JUDGMENT
Challenge in this second appeal is made to the judgment and
decree dated 20.12.2007 passed in A.S. No.59/07 on the file of the
Principal District Court, Erode, reversing the judgment and decree dated
18.09.2006 passed in O.S.No.180/05 on the file of the Second
Additional Subordinate Court, Erode.
2. For the sake of convenience, the parties are referred to as per
their ranking in the trial court.
3. The plaintiff in O.S. No.180 of 2005 is the appellant in the
Second Appeal.
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S.A..No.1142 of 2008
4. Suit for permanent injunction.
5. The case of the plaintiff, in brief, is that the first defendant
is the mother of the defendants 2 to 4 and the suit property originally
belonged to the plaintiff's father Chellappa Gounder by way of the
registered sale deed dated 24.11.1952 and thereafter, Chellappa Gounder
had executed a settlement deed in favour of his son, namely the plaintiff,
by way of the settlement deed dated 09.09.1985 and the plaintiff obtained
the possession of the property by way of the settlement deed and
enjoying the same till date and the suit property was originally a vacant
site upon which the plaintiff built up a terraced house about 15 years
back and enjoying the same by paying the house tax, etc., and the
relationship between the plaintiff and the defendants is not smooth and
cordial and when the plaintiff wanted to demolish the house in the suit
property and build up a new building in the same and for that purpose
when he removed the tiles in the roof on 15.04.2004, the defendants
attempted to interfere with the plaintiff's endeavour without any basis
and hence according to the plaintiff, he has been necessitated to institute
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S.A..No.1142 of 2008
the suit against the defendants for the relief of permanent injunction.
6. The defendants resisted the plaintiff's suit contending that
the plaintiff's suit is not maintainable either in law or on facts and
disputed that the suit property originally belonged to the plaintiff's father
Chellappa Gounder as put forth in the plaint and that according to the
defendants, the suit property is the undivided property belonging to the
family of Sengoda Gounder, who had three sons, namely, Muthusamy,
Nachimuthu and Marappa Gounder and it is their ancestral property and
the plaintiff is the sister's son of Sengoda Gounder. There had been a
partition suit of the family properties pending between the family
members and the alleged settlement deed dated 09.09.1985 said to have
been executed by Cellappa Gounder in favour of the plaintiff is not
binding upon the defendants and the plaintiff's suit is bad for non joinder
of necessary parties, namely, the other sharers who have shares and
interest in the suit property. The suit has been laid by the plaintiff at the
instigation of Arunachalam and Karuppayammal with a view to delay the
partition, particularly the suit proceedings in O.S. No.66 of 2003 laid for
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S.A..No.1142 of 2008
partition. The suit property is the building built up by Sengoda Gounder
and as well as a vacant site and after the demise of Sengoda Gounder, his
son built up a separate house and it continues in the possession of the
defendants' family and till date the patta and the revenue records stand in
the name of the defendants' father. The plaintiff has never in he
possession and enjoyment of the suit property and the suit building is
already in a dilapidated condition and the suit property has not been
properly described and suppressing the abovesaid materials, the plaintiff
has come forward with the false suit. The plaintiff, without any cause of
action, has laid the suit and hence prayed for the dismissal of the
plaintiff's suit. In the additional written statement, the defendants would
plead that the plaintiff's suit for bare injunction without the relief of
declaration, as such, is not maintainable and on that score also the suit is
liable to be dismissed.
7. It is noted that the abovesaid suit in O.S.No.180 of 2005
and the another suit laid for partition and permanent injunction in
O.S.No.66 of 2003 were jointly tried and a common judgment was
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S.A..No.1142 of 2008
rendered by the trial court. It is further noted that the common evidence
was recorded in O.S. No.66 of 2003 and the same had been treated as the
evidence in O.S.No.180 of 2005.
8. On the abovesaid basis, it is found that in the trial court, on
the side of the plaintiff P.Ws.1 and 2 were examined and Exs.A1 to A11
were marked and on the said of the defendants D.Ws. 1 to 4 were
examined and Exs. B1 to B16 were marked.
9. On a consideration of the oral and documentary evidence
adduced by the respective parties and the submissions made, the trial
court was pleased to decree the suit for partition in O.S.No.66 of 2003
and also granted the relief of permanent injunction as prayed for in
O.S.No.180 of 2005.
10. As against the judgment and decree passed in O.S.No.180
of 2005, the appellants/defendants had preferred the first appeal in A.S.
No.59 of 2007. The first appellate court, on an appreciation of the
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S.A..No.1142 of 2008
materials available on record and the submissions put forth by the
respective parties, was pleased to set aside the judgment and decree of
the trial court in O.S.No.180 of 2005 and consequently by way of
allowing the appeal preferred by the defendants, dismissed the suit laid
by the plaintiff' in O.S. No.180 of 2005. Impugning the judgment and
decree of the first appellate court, the present second appeal has been laid
by the plaintiff'.
11. At the time of admission of the second appeal, the
following substantial questions of law were formulated for consideration.
1) Whether the relief of declaration is mandatory for
mere asking in a suit for permanent injunction based
on valid title?
2) Whether in a suit for permanent injunction based on
title, is it mandatory for the plaintiff to reside in the
suit property to prove possession though the suit
property is in the dilapidated condition?"
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S.A..No.1142 of 2008
12. The plaintiff has laid the suit simplicitor for the relief of
permanent injunction. The suit property has been described as a house
situate at Karumandisellipalayam Village, Old Survey No.326,new
R.S.No.564/6 measuring an extent of 0.06.5 hectares and in the above
extent of 1200 sq. ft present Door No.46 situated in the south west
corner. Now, according to the plaintiff, when he endeavoured to
demolish the existing house construction in the suit property and built up
a new house, the defendants, without any basis, attempted to interfere
with his possession and enjoyment and hence it is stated that he had been
necessitated to lay the suit against the defendants for the relief of
permanent injunction.
13. As above pointed out, in the written statement the
defendants have, in toto, disputed the same. As rightly concluded by the
first appellate court, particularly, when the defendants have challenged
the claim of the plaintiff's title to the suit property, as contended by the
defendants' counsel, the plaintiff's should have amended the suit relief by
including the relief of declaration of title qua the suit property. However,
the plaintiff has proceeded to continue the suit only for the relief of
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S.A..No.1142 of 2008
permanent injunction. In such view of the matter, considering the dictum
laid by the Supreme Court in CDJ 2008 SC 603 (Anathula
Sudhakar V. P.Buchi Reddy (dead) by Lrs and others), the suit
laid by the plaintiff for the relief of bare injunction, without seeking the
relief of declaration of title qua the suit property, particularly, in the light
of the stout denial of the plaintiff's title to the suit property on the part of
the defendants, on that ground, the suit is found to be not legally
sustainable.
14. In the light of the abovesaid background, it is for the
plaintiff to establish that he is in the possession and enjoyment of the suit
property as described in the plaint. The plaintiff claims title to the suit
property based on the settlement deed said to have been executed by his
father dated 09.09.1985, which has been marked as Ex.B14. On a perusal
of the description of the settled property as also extracted by the
appellate court in its judgment, it is evident that there has been no house
property in the property settled under Ex.B14. On the other hand, as
rightly concluded by the first appellate court, only the vacant site
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S.A..No.1142 of 2008
measuring 1200 sq. ft with boundaries on the north west in R.S.No.564/6
has been settled in favour of the plaintiff. Therefore, the claim of the
plaintiff that inclusive of the house property bearing door No.46 his
father has settled the suit property and handed over the possession of the
same to him, as such, cannot be, believed and accepted.
15. The plaintiff, who has been examined as D.W.4 before the
trial court, in the chief examination, would state that when his father
purchased the suit property it was a vacant site and that 15 years
thereafter, it is he, who had put up the house construction and enjoying
the same by paying the house tax. However, he did not disclose the door
number of the house property said to have been put up by him as testified
in the chief examination and that apart , he has also not mentioned clearly
as to when in particular he had put up the house construction in the suit
property. Furthermore, during the course of cross examination would
depose that with reference to the property comprised in R.S. No. 564/6
i.e. survey number of the suit property, it is stated that the patta and chitta
extracts for the same stands in the names of Nachimuthu Gounder and
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S.A..No.1142 of 2008
Marappa Gounder. The plaintiff would further state that during 1986, he
had put up the new house construction and for the same, he had obtained
the sanction plan from the panchayat. However, the sanction plan has
not been produced in the court and the same is not in his custody and he
would also claim that prior to the demolition of the existing house
during 2004, he had been enjoying the electricity. However, no proof is
available with him to evidence that he has been enjoying electricity
service connection viz. the old house construction existing in the suit
property. Further the plaintiff would also state during the course of
evidence that inasmuch as the house construction had been demolished
he is not in the possession of the suit property and he is residing in 111C
Karumandisellipalayam. Based on the abovesaid evidence tendered by
the plaintiff, it is found that the plaintiff is unable to substantiate as to
whether actually he is in the possession and enjoyment of the suit
property as described in the plaint and also not established whether he
had obtained any valid sanction for putting up the house construction in
the suit property and also unable to clearly point out as to whether and in
what mode he had been enjoying the alleged existing house said to be
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S.A..No.1142 of 2008
available in the suit property and pertaining to the same no acceptable
and reliable material is forth coming on the part of the plaintiff.
16. The plaintiff would also endeavour to produce certain
house tax receipts to substantiate that he has been in the possession and
enjoyment of the house located in the suit property. As rightly concluded
by the first appellate court, the house tax receipt marked as Ex.B9 does
not relate to Door No.46. Ex.B10 electricity receipt is found to be in the
name of one Arunachalam. As mentioned in Ex.B10, the plaintiff has not
established that the service connection No.254 was provided to the house
situated in the suit property. Ex.B4 electriciy receipt is in connection
with the Service S.C.No.816 in the name of Arunachalam and E.B12 kist
receipt is also found in the name of Arunachalam. The house tax receipt
marked as Ex.B16 series are found to have been filed from the year 1991
for Door No.46 and the same stand in the name of the plaintiff, however,
as rightly analysed by the first appellate court, the receipt dated
14.02.1992 though states as pertaining to Door No.46, it is described as
located at Angappa Street, Ward No.4, Perundurai and in some other
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S.A..No.1142 of 2008
receipts of B16 series, the above house is mentioned as situated at
Angappa Street, Perundurai. Therefore, the plaintiff is not unable to
correlate the housetax receipts marked as Ex.B16 series to the alleged
house construction said to have been put up by himin the suit property.
As above pointed out, the plaintiff has not produced the sanction plan
said to have been issued by the panchayat for the proposed construction
of the house in the suit property. Therefore, in such view of the matter,
when there is no acceptable and reliable material on the part of the
plaintiff to hold safely that he is in the possession and enjoyment of the
suit property as claimed by him and when the plaintiff has failed to
establish his claim of possession and enjoyment of the suit prooperty as
described in the plaint by acceptable and reliable documents and
furthermore, when the plaintiff's suit is also found to be not legally
sustainable without the relief of declaration of title to the suit property
despite the denial of the title by the defendants as outlined by the Apex
Court in the decision referred to supra, all put together, it is seen that the
first appellate court is justified in setting aside the judgment and decree
of the trial court and dismissing the plaintiff's suit.
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S.A..No.1142 of 2008
17. I do not find any valid reason warranting interference in the
reasonings and conclusions of the first appellate court in dismissing the
plaintiff's suit.
18. In the light of the abovesaid factors, as above held, the
plaintiff's suit for bare injunction, without seeking the relief of
declaration of title despite the specific plea of his title to the suit property
having been stoutly repudiated by the defendants in the written
statement, is not legally maintainable and, as above discussed and held,
the plaintiff having failed to establish that he is in the possession and
enjoyment of the suit property as claimed by him either before the
alleged demolition of the alleged house construction or after the same by
placing acceptable and reliable materials, in my considered opinion, no
substantial question law is involved in the second appeal. Be that as it
may, the substantial questions of involved in the second appeal are
accordingly answered against the plaintiff and in favour of the
defendants.
19. For the reasons aforestated, the judgment and decree dated
20.12.2007 passed in A.S. No.59/07 on the file of the Principal District
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Court, Erode, reversing the judgment and decree dated 18.09.2006
passed in O.S.No.180/05 on the file of the Second Additional
Subordinate Court, Erode, are confirmed. Resultantly, the second appeal
is dismissed with costs. Consequently, connected miscellaneous petition,
if any, is closed.
05.02.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Principal District Court, Erode,
2. The Second Additional Subordinate Court, Erode.
3. The Section Officer, VR Section, High Court, Madras
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S.A..No.1142 of 2008
T. RAVINDRAN, J.
bga
S.A.No.1142 of 2008
05.02.2021
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